Whitworth University Compliance with Copyright Law and Federal Requirements Pertaining to Illegal Peer-to-Peer (P2P) File Sharing

Whitworth University seeks to comply with all aspects of copyright law, including those pertaining to peer-to-peer file sharing of copyrighted music, movies, and video games. In addition, the Higher Education Opportunity Act (HEOA), which governs provision of federal financial aid, specifically obligates the university to combat illegal file sharing by users of its network and technology systems. The purpose of this is page is to inform the Whitworth community regarding illegal P2P file sharing and to document Whitworth's plans and policies for combating it as mandated by HEOA.

What is peer-to-peer (P2P) file sharing? When is it illegal?
"File sharing" can refer to any transmission or distribution of digital files via the Internet. In the present context, it concerns primarily the sharing of music, movies, video games, computer software and similar media. "Peer-to-peer" or "P2P" file sharing involves the use of network programs that let the user find files of music, movies, etc., on other users' computers and then download them, or that sets up a computer from which such files can be downloaded. Popular P2P programs include but are not limited to KaZaA, Gnutella, Morpheus, BitTorrent, and AudioGalaxy.

Neither file sharing in general nor P2P file sharing is inherently illegal. They have many legitimate uses – for instance, a musician sharing music that she herself has written, performed, and recorded. However, popular P2P file sharing programs have been widely used to share copyrighted music, movies, and other media without authorization of their copyright owners and, if required, payment of a purchase price or royalty fee. Most commercial music and movies are copyrighted and therefore cannot be freely shared. This is the law.

Copyright infringement occurs both when one downloads copyrighted content without authorization and when one makes such content available to others without authorization. In other words, both providers and recipients in illegal file sharing are in violation.

Can illegal file sharing be detected?
Trade groups such as the Recording Industry Association of America, the Entertainment Software Association, and coalitions of movie producers operate anti-piracy agencies that regularly monitor internet traffic for illegal file sharing. When they detect an infringement, they may send a notice to the designated agent of the infringing party's internet service provider. The notice typically includes data that facilitates identification of the alleged infringer. Internet service providers – in this case Whitworth – are required under the Digital Millennium Copyright Act (DCMA) to receive such notices and to respond to them with reasonable efforts to stop the infringement and deter re-occurrence.

What are the potential civil and criminal penalties?
The following summary of potential civil and criminal penalties for violation of federal copyright laws, including unauthorized P2P file sharing, was prepared by the U.S. Department of Education in consultation with representatives of copyright holders and educational institutions:

Copyright infringement is the act of exercising, without permission or legal authority, one or more of the exclusive rights granted to the copyright owner under section 106 of the Copyright Act (Title 17 of the United States Code). These rights include the right to reproduce or distribute a copyrighted work. In the file-sharing context, downloading or uploading substantial parts of a copyrighted work without authority constitutes an infringement.

Penalties for copyright infringement include civil and criminal penalties. In general, anyone found liable for civil copyright infringement may be ordered to pay either actual damages or "statutory" damages affixed at not less than $750 and not more than $30,000 per work infringed. For "willful" infringement, a court may award up to $150,000 per work infringed. A court can, in its discretion, also assess costs and attorneys' fees. For details, see Title 17, United States Code, Sections 504, 505.

Willful copyright infringement can also result in criminal penalties, including imprisonment of up to five years and fines of up to $250,000 per offense.

Technology-based deterrents
HEOA requires Whitworth to use one or more "technology-based deterrents" to illegal file sharing. The university meets this requirement by receiving notices of detected infringement and responding to them by using the campus network's technological capabilities to identify the alleged infringer and to block his or her internet access temporarily or permanently, among other steps to stop the illegal activity and prevent re-occurrence. (As the online service provider for its campus community, Whitworth also incurs this obligation to "respond expeditiously" to infringement notices under the Digital Millennium Copyright Act.)

Additional technology-based options for deterring illegal file-sharing, such as bandwidth shaping, active monitoring of network traffic, or use of commercial programs to block illegal activity, are not presently in use but may be deployed if warranted.

Whitworth procedures for reported or discovered infringement and associated sanctions
When the university receives a notice of detected infringement, or otherwise becomes aware of it, it uses its network technology to identify the apparent infringer, immediately suspends his/her internet access, notifies him/her of the reason for the suspension, and follows up with appropriate educational and/or disciplinary steps. Internet access is restored once those steps have been taken. Repeat violations can lead to permanent blocking of one's internet access.

Legal alternatives to illegal downloading
There are many legal sources for copyright protected materials such as music, movies, television shows, etc. They have a variety of business models. Some are even free. The most current and comprehensive lists of legal sources are maintained by industry and professional associations. EDUCAUSE provides a list of examples:

The Whitworth library also makes some licensed music and video resources available for students, faculty, and staff. Visit the library's web site, www.whitworth.edu/library, or contact the library for information.

Annual disclosure
As required by HEOA, Whitworth will regularly – at least annually – notify each student of the university's obligation to combat illegal file sharing and the information available on this page. It will also provide this notice to its employees.

Periodic review of effectiveness
As required by HEOA, Whitworth will periodically review the effectiveness of its deterrence efforts. Reviews will be conducted at least annually, near the beginning of the calendar year in January or February. A review will also be triggered any time 15 or more legitimate infringement notices are received from rights holders within a four-week period. Reviews will be conducted by a committee composed of (1) the university’s designated infringement notification agent, (2) a designated representative of the Information Resources management team, and (3) a designated representative from the Student Life division.

The primary assessment criterion for these reviews will be the number and frequency of legitimate infringement notices received. If at any time these exceed 15 or more within a four-week period, or 50 over the course of a year, the committee together with the Information Resources management team will weigh additional deterrence measures beyond those currently in place. Any other reliable evidence of infringement activity may be considered as well, and corrective actions may be taken at any time as appropriate university officials deem necessary.